> Additionally, even if there's no copyright, the terms of service may still apply separately (see OpenAI disallowing training a competitor model on output from OpenAI models)
Aren't contract clauses that relate to the distribution of material preempted by the copyright act?
No. However contract clauses only apply to people who are actually parties to the contract.
For example you and I could enter into a contract for me to use AI to generate something that is not copyrightable from data you provide and give you a copy of that thing. There would in general be no legal problem if the contract included restrictions on what you could do with that thing, including restrictions on distributing it.
Part of the quid pro quo of a contract can be one party giving up a right to do something that they would normally have a right to do.
Now suppose the contract did allow you to make and distribute copies as part of your product. Someone else starts making copies of those copies you distributed and distributing those copies.
There is no contract between me and that person, so I would not be able to stop them. I've got no contract with them, and the thing is not copyrighted, so there's nothing that prevents them from copying it.
> Aren't contract clauses that relate to the distribution of material preempted by the copyright act?
Generally, no. It's possible for there to be interactions in some cases, but the Copyright Act wouldn't generally preempt contract terms. (Its closer to the other way around, in that—to the extent copyright rights exist that could otherwise be enforced—a relevant contract will generally limit enforcement and recover to breach of contract rather than bare copyright action.)
Aren't contract clauses that relate to the distribution of material preempted by the copyright act?